Karnataka High Court
Tippeswamy vs The State Of Karnataka on 13 December, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.737/2008 C/W
CRIMINAL APPEAL Nos.793/2008, 803/2008 &
783/2008
CRL.A.No.737/2008
BETWEEN:
TIPPESWAMY
S/O LATE BASAPPA
AGED ABOUT 48 YEARS
OCC : AGRICULTURE
R/O SHIVANAKERE, BHARMASAGARA HOBLI
TQ. DIST. CHITRADURGA. ... APPELLANT
(BY SRI P.B.UMESH, ADV. FOR SRI. R B DESHPANDE,
ADV.)
AND:
THE STATE OF KARNATAKA
BY DODDAPET POLICE
SHIMOGA. ... RESPONDENT
(BY SRI M. NARAYANA REDDY, SPP)
THIS APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., AGAINST THE JUDGEMNT DATED 04.06.2008
IN S.C.NO.250/2007, ON THE FILE OF THE
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ADDITIONAL SESSIONS JUDGE, SHIMOGA,
CONVICTING THE RESPONDENT/ACCUSED NO.7 FOR
AN OFFENCE PUNISHABLE UNDER SECTION 489-C
R/W SECTION 34 IPC AND SENTENCING HIM TO
UNDERGO S.I FOR THREE YEARS & ETC.
CRL.A No.793/2008
BETWEEN:
PUNEETH
S/O LAKSHMAN NAIK
AGED 21 YEARS
I YEAR B.A. STUDENT
R/O KARIGANUR
CHANNAGIRI TALUK
DAVANGERE DISTRICT. ... APPELLANT
(BY SRI Y S SHIVA PRASAD, ADV.)
AND:
THE STATE OF KARNATAKA
BY DODDAPET P.S.
SHIMOGA. ... RESPONDENT
(BY SRI M.NARAYANA REDDY, SPP)
THIS APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., AGAINST THE JUDGMENT DATED
04.06.2008, PASSED BY THE ADDITIONAL
SESSIONS JUDGE, SHIMOGA, IN S.C.NO.250/2007,
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR
OFFENCES PUNISHABLE UNDER SECTIONS 489-B
AND 489-C R/W SECTION 34 IPC AND SENTENCING
HIM TO UNDERGO S.I. FOR 3 YEARS & ETC.
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CRL.A No.803/2008
BETWEEN:
MANJA NAIK @ MANJA
S/O KUMAR NAIK
AGED 19 YEARS, COOLIE WORK
R/O LAMANIHATTI, KARIGANUR
CHANANGIRI TALUK
DAVANAGERE DISTRICT. ... APPELLANT
(BY SRI P.B.UMESH, ADV. FOR SRI. R B DESHPANDE,
ADV.)
AND:
THE STATE OF KARNATAKA
BY DODDAPET POLICE
SHIMOGA. ... RESPONDENT
(BY SRI.M.NARAYANA REDDY, SPP)
THIS APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., AGAINST THE JUDGEMNT DATED
04.06.2008, PASSED BY THE ADDITIONAL SESSIONS
JUDGE, SHIMOGA, IN S.C.NO.250/2007, CONVICTING
THE APPELLANT/ACCUSED NO.4 FOR AN OFFENCE
PUNISHABLE UNDER SECTION 489-C R/W SECTION
34 IPC AND SENTENCING HIM TO UNDERGO S.I. FOR
THREE YEARS & ETC.
CRL.A No.783/2008
BETWEEN:
SRI RAMACHANDRAPPA @ RAMANNA
S/O LATE BASAVARAJAPPA
4
AGED ABOUT 41 YEARS
OCC : TAILOR
R/O K T JAMBANNANAGAR
1ST CROSS, I MAIN ROAD
DAVANAGERE - 577 213.
... APPELLANT
(BY SRI G S BALAGANGADHAR, ADV.)
AND:
STATE BY DODDAPET
POLICE STATION
SHIMOGA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILIDNG
BANGALORE .
... RESPONDENT
(BY SRI.M.NARAYANA REDDY, SPP)
THIS APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C., AGAINST THE JUDGMENT DATED
04.06.2008, PASSED BY THE ADDITIONAL SESSIONS
JUDGE, SHIMOGA IN S.C.NO.250/2007, CONVICTING
THE APPELLANT/ACCUSED NO.6 FOR AN OFFENCE
PUNISHABLE UNDER SECTION 489 C R/W SECTION
34 IPC AND SENTENCED HIM TO UNDERGO S.I. FOR
THREE YEARS & ETC.
THESE APPEALS COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Crl.A.793/2008 is filed by accused No.1. Crl.A.No.737/2008 is filed by accused No.7. Crl.A.No.783/2008 is filed by accused No.6 and Crl.A.No.803/2008 is filed by accused No.4 against the judgment of conviction made in S.C.No.250/2007 on the file of Addl.Sessions Judge, Shimoga.
2. The Doddapet police of Shimoga town after investigating Crime No.69/2007 filed final report for offences punishable under Sections 489-A, 489-B and 489-C r/w 34 IPC against accused No.1 Punith, accused No.2 Ajesha, accused No.3-Siddesha @ Siddukumara, accused No.4 Manjanaika @ Manja, accused No.5- Veeranna @ Veereshi, accused No.6-Ramachandrappa @ Ramanna and accused No.7 Tippeswamy. Accused Nos. 2 and 3 were juveniles. Therefore, they were sent to Juvenile Justice Board. The learned Sessions Judge tried accused Nos.1, 4 to 7 for the afore-stated offences. 6 The learned Sessions Judge convicted accused No.1 for offences punishable under Sections 489-B and 489-C r/w 34 IPC. The learned Sessions Judge convicted accused Nos. 4, 6 and 7 for an offence punishable under Section 489-C r/w 34 IPC. The learned Sessions Judge acquitted accused No.5 for an offence punishable under Section 489-C IPC. Therefore, accused Nos. 1, 4, 6 and 7 have filed the instant appeals.
3. I have heard learned counsel for the accused and learned SPP for the respondent-State.
4. The learned SPP would submit that the State has not filed appeal against impugned judgment as relates to acquittal of accused Nos.4, 5, 6 and 7 for an offence punishable under Section 489-B IPC.
5. The following points would arise for determination:-
(i) Whether the prosecution has proved that on 20.04.2007, accused No.1 was 7 selling or buying or receiving or trafficking in or using the counterfeit currency notes as genuine currency notes having reasons to believe the same as counterfeit currency notes in Shimoga town within the jurisdiction of Doddapet police station?
(ii) Whether the prosecution has proved that accused No.1 was in possession of counterfeit currency notes at the time and place stated in point No.1 knowing or having reasons to believe that they are counterfeit currency notes with intention to use the same as genuine currency notes, thereby committed an offence punishable under Section 489-
C IPC?
(iii) Whether the prosecution has proved that accused Nos. 4, 6 and 7 were found in possession of counterfeit currency notes at the place and time mentioned in point No.1 knowing or having reasons to believe that they are counterfeit currency notes with an 8 intention to use the same as genuine currency notes, thereby committed an offence punishable under Section 489- C IPC?
(iv) Whether the learned Sessions Judge has properly appreciated the evidence on record?
(v) To what order?
6. The prosecution had examined PWs 1 to 10 and relied upon the documentary evidence, in particular, the mahazars prepared at the time of seizure of counterfeit currency notes. The private witnesses namely, PWs 1 to 8 have hot supported the case of prosecution. The evidence given by PW-10 L.Jagadish relates to latter part of investigation. The entire investigation was conducted by PW-9 Devaraj. Therefore, the prosecution has relied upon the evidence of PW-9 to prove charges against the accused.
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7. The learned counsel for accused and learned SPP for the respondent-State have taken me through the evidence of PW-9.
8. PW-9 Devaraj has deposed; on 20.04.2007, he received information from PW-1 about the circulation of counterfeit currency notes. Therefore, he reached Pingara Bar, of which PW-1 was the cashier. PW-9 received first information from PW-1 and apprehended accused Nos. 1 to 3 and brought them to police station. PW-9 registered a case on the basis of first information given by PW-1. He searched the person of accused No.1. Accused No.1 was in possession of one counterfeit currency note of Rs.100/- denomination and 2 genuine currency notes of Rs.50/- denomination. He also recorded the voluntary statement of accused No.1.
PW-9 has deposed; that he apprehended accused No.1 in Pingara Bar at 9.30 p.m. on 20.04.2007. PW-9 did not search the person of accused No.1 soon after he 10 was arrested. On the other hand, PW-9 had searched the person of accused after registration of case and after recording his voluntary statement. The evidence of PW- 9 that he completed formalities of registration of the case and thereafter searched the person of accused No.1 does not inspire confidence. PW-9 had received information from PW-1 that certain persons had passed on counterfeit currency notes in Pingara Bar of which PW-1 was the cashier. In the circumstances, PW-9 did not have any reasons to postpone the personal search of accused No.1. Above all, PW-9 has not deposed that counterfeit currency notes seized from the possession of accused No.1 bare distinctive features sufficient to convince any person to believe that it is a counterfeit currency note and accused No.1 by mere look at the counterfeit currency note had knowledge or reasons to believe the same as counterfeit/fake currency note. PW- 9 has prepared contemporaneous record (mahazar) as per Ex.P2. The witnesses who have attested the 11 mahazar and who are alleged to have witnessed the seizure of counterfeit currency note from the possession of accused No.1 have not supported the case of prosecution. In the mahazar marked as Ex.P2, it is shown that counterfeit currency note seized from the possession of accused No.1 bears serial number as OBK 512254. As per the list prepared by the investigating officer and the report of Assistant General Manager of Reserve Bank, in all 242 counterfeit currency notes of Rs.100/- denomination bearing serial number OBK 512254 were seized during the course of investigation. The investigating officer has not given evidence regarding the seizure of remaining 241 currency notes bearing serial number OBK 512254. PW-1 (first informant) has not supported the case of prosecution. The first information (Ex.P1) does not reveal that accused No.1 had passed on counterfeit currency notes to PW-1.
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9. Therefore, it is not safe to place reliance on the evidence of investigating officer to hold that accused No.1 was in possession of 1 counterfeit currency note of Rs.100/- denomination having reasons to believe that it is a counterfeit currency note with an intention to circulate the same as genuine currency note. The voluntary statement said to have given by accused No.1 had not lead to recovery of counterfeit currency note. On the other hand, PW-9 had recovered tow counterfeit currency notes of Rs.100/- denomination from the trousers pocket of accused No.2-Ajesha in Room No.11 of Srinivas Lodge.
10. PW-9 has deposed; on 21.04.2007, PC 1349 produced accused No.4 before PW-9 along with the report and he interrogated accused No.4 and seized one Rs.100/- currency note from his possession under a mahazar (Ex.P9). At this juncture, it is necessary to state that PW-9 has not deposed that the currency note 13 which was found in possession of accused No.4 and seized by PW-9 was a counterfeit currency note which is the basic ingredient to prove an offence punishable under Section 489-C IPC. PW-9 has not mentioned the serial number found on the currency note. PW-9 has not deposed that the seized currency notes had distinctive features, by mere glance, it was possible to make out that it was counterfeit currency note. The evidence of PWs 9 and 10 does not reveal the currency note which was seized from the possession of accused No.4 was sent to the expert of Reserve Bank and opinion was received in relation to this currency note.
11. The learned SPP would submit that PW-9 has incorporated the number in seizure mahazar. It is needless to state that the seizure mahazar cannot be lead as per say evidence. The mahazars and contemporaneous record prepared during investigation could be used for the purpose of corroboration under 14 Section 157 of the Evidence Act and for the purpose of contradiction under Section 145 of the Evidence Act.
12. The evidence of PW-9 is hardly sufficient to prove that accused No.4 was in possession of one fake currency note of one hundred rupees denomination.
13. PW-9 has deposed; on 24.04.2007, accused No.5 Veeranna led PW-9 and other police officials to the house of accused No.6 situate in KTJ Extension, Davangere. Accused No.5 showed the house of accused No.6. Before adverting to the further evidence of PW-9, it is necessary to state that accused No.5 who was also tried for the similar offences has been acquitted on the basis of evidence of PW-9. The learned Sessions Judge has held that prosecution has failed to prove the involvement of accused No.5. In the circumstances, a reasonable doubt would arise as to how far evidence given by PW-9 against accused No.6 is reliable. 15
14. PW-9 has deposed; that accused No.5 lead PW-9, police staff and witnesses namely, Mruthyunjay and L.Ramesh to the house of accused No.6- D.B.Ramachandrappa. Accused No.5 called accused No.6 by his name. Accused No.6 produced a plastic cover before the Investigating Officer. The plastic cover contained 120 currency notes of Rs.100/-denomination and 6 currency notes of Rs.500/- denomination. PW-9 seized the same under the mahazar. It is relevant to state that PW-9 has not deposed that 120 currency notes of Rs.100/- denomination and 6 currency notes of Rs.500/- denomination allegedly produced by accused No.6 before the Investigating Officer were counterfeit currency notes. At this juncture, it is relevant to state that Investigating Officer has not stated that the afore- stated currency notes had the same serial numbers. He had not deposed about the serial numbers found on the currency notes. The Investigating Officer had not collected any documentary evidence to prove that house 16 from where accused No.6 came out with the currency notes belonged to accused No.6 or that accused No.6 was a tenant of that house.
15. PW-9 has deposed that accused No.5 called accused No.6 by his name and accused No.6 immediately brought bundle of currency notes kept in plastic cover and produced the same before PW-9. The evidence of PW9 that immediately after hearing call of accused No.5, accused No.6 came out with a plastic cover containing bundles of counterfeit currency notes looks improbable. It is needless to state that circulation of counterfeit currency notes would be a concealed activity. Thereafter, PW-9 recorded the voluntary statement of accused No.6. The relevant portion of voluntary statement of accused No.6 (Ex.P12) reads that he is in possession of Rs.12,000/- (counterfeit currency notes) and he would produce the same. As per evidence of PW9, recording of voluntary statement was preceded 17 by seizure of counterfeit currency notes from the possession of accused No.6. The recovery mahanzar (Ex.P10) prepared after seizure of currency notes from the possession of accused No.6 would reveal that PW-9 had prepared a separate list indicating the number and nature of currency notes seized from the possession of accused No.6. The list was not a part of investigation records. The date of recovery mahazar is altered from 23.04.2007 to 24.04.2007.
16. Therefore, evidence of PW-9 is hardly not sufficient to prove that accused No.6 was in possession of counterfeit currency notes and that counterfeit notes were seized from his possession. The learned Sessions Judge referring to contents of mahazar relating to seizure of counterfeit currency notes from the house of accused No.6 has held that PW-9 had made improvements and alterations. PW-9 has made 18 interpolation which is extremely a serious thing and nothing short of material alteration of the documents.
17. PW-9 has deposed; that on 24.04.2007, at about 4.35 p.m., they arrested accused No.7 and recorded the voluntary statement of accused No.7. The investigating officer took accused No. 7 to his house. Accused No.7 produced Rs.2,85,000/- counterfeit currency notes. They had been kept in a plastic bag. He has deposed there were currency notes of Rs.500/- denominations and currency notes of Rs.100/- denominations. PW-9 has not collected documentary evidence to prove the house from where currency notes were seized belonged to accused No.7 or that accused No.7 was a tenant of that house. PW-9 has not given reasons to arrive at a conclusion that they are counterfeit currency notes. PW-9 has not deposed the distinctive features of those currency notes to make out or reasons to believe that they are counterfeit currency 19 notes. PW-9 has not deposed the number of currency notes of Rs.500/- denomination and number of currency notes of Rs.100/- denomination. The relevant part of voluntary statement said to have been given by accused No.7 is marked as Ex.P13. The recovery mahazar relating to seizure of counterfeit currency notes from the house of accused No.7 is marked as Ex.P11. The date in Ex.P11 is altered from 23.04.2007 to 24.04.2007. In the recovery mahazar (Ex.P11), it is stated that PW-9 had prepared separate list indicating the number and denomination and nature of currency notes seized from the possession of accused No.7.
18. The list containing the details of seized currency notes was subsequently prepared and it was not a part of documents submitted under section 173 Cr.P.C. PW-9 has admitted that he had not enclosed the list (Ex.P11) to the final report filed under Section 173 Cr.P.C. The evidence of PWs 9 and 10 is not sufficient 20 to establish that PW-10 had sent these currency notes to an expert (General Manager, Reserve Bank of India). The learned Sessions Judge has held Ex.P11 (mahazar dated 24.04.2007) said to have been prepared near the house of accused No.7 when counterfeit currency notes seized from the house of accused No.7 is not free from suspicion. The learned Sessions Judge has held that PW-9 has made improvements and interpolations in Ex.P11.
19. The learned SPP would submit that PW-9 has prepared mahazars regarding the seizure of counterfeit currency notes from the possession of accused and he had also prepared the list indicating the serial numbers. The contemporaneous record (mahazars) prepared during investigation cannot be read as per say evidence. The documents filed by investigating officer could be used for refreshing memory while giving evidence. The documents can be used by prosecution under Section 21 157 of the Evidence Act or by the defence under Section 147 of the Evidence Act. The evidence of PWs 9 and 10 does not reveal that currency notes which are allegedly seized from the possession of accused No.6 were sent to the expert (General Manager, Reserve Bank of India).
20. PW-10 has deposed on 20.05.2007, he sent the seized currency notes for examination to General Manager, Reserve Bank of India and received report as per Ex.P17. The report (Ex.P17) indicates that seized currency notes was taken from police station on 22.05.2007. However, the acknowledgment from the General Manager of Reserve Bank of India is not produced.
21. The learned Sessions Judge in paragraph-11, referring to the seizure mahazar marked as Exs.P10 and P11 has held that the investigating officer (PW-9) has committed serious lapses while preparing these documents. The learned Sessions Judge having held 22 that Ex.P.10 & Ex.P.11 are manipulated documents, should not have placed reliance on these documents to hold that counterfeit currency notes were seized from possession of accused 6 & 7.
22. The learned Sessions Judge has failed to notice that evidence adduced by prosecution regarding seizure of counterfeit currency notes from possession of accused 1 & 4 suffers from material discrepancies. Therefore, impugned judgment cannot be sustained.
23. In the result, I pass the following:-
(i) The appeal is accepted.
(ii) The impugned judgment as it relates to conviction of accused No.1 for offences punishable under Sections 489-B and 489-C r/w 34 IPC and conviction of accused Nos. 4, 6 and 7 for an offence punishable under Section 489-C r/w 34 IPC is set aside.23
(iii) Accused No.1 is acquitted for offences punishable under Sections 489-B and 489-C r/w 34 IPC. Accused Nos. 4, 6 and 7 are acquitted for an offence punishable under Section 489-C r/w 34 IPC.
(iv) The rest of impugned judgment is confirmed.
(v) The bail bonds executed by them shall stand cancelled.
(vi) If the accused have deposited fine amount, the same shall be refunded to them.
Sd/-
JUDGE Srl.